Moreover, even though the introduction of a regime of strict liability presumably would produce a relative increase in the incidence of litigation in equity, the desire to reverse unjust enrichments surely outweighs the desire to protect bankers, stockbrokers, and lawyers from the occasional need to defend themselves against unwarranted claims.
This article analyzes the role of freedom of choice in the Canadian law of unjust enrichment.
The author argues that, since the defendant's autonomy is sufficiently protected by the element of enrichment, the courts should not additionally protect that same interest when formulating the reasons for restitution at the third stage of the unjust enrichment analysis.
These strategies are tied to the three elements of the cause of action in unjust enrichment, to which restitution invariably responds: (1)
The second element of unjust enrichment provides relatively little scope for mediating a compromise between the parties.
Although the second element in unjust enrichment is occasionally used to strike a balance between the parties' interests, most of that work is done at the first and third stages of analysis.
The second source of difficulties arises from the fact that the concept of enrichment serves a dual purpose: It most obviously satisfies the first element of unjust enrichment (i.
18) Canadian law therefore "has consistently taken a straightforward economic approach to the first two elements of the test for unjust enrichment.
As discussed below, liability for unjust enrichment is generally strict.
This thesis has intellectual appeal and it certainly could provide the basis for a coherent principle of unjust enrichment.
The author then successfully claimed the value of his services on a quantum meruit--or, as it would be phrased today, on the basis of restitution for unjust enrichment.
44) Consequently, as one Canadian judge observed, it may be possible to resist an action in unjust enrichment simply by turning to the claimant and saying, "[I]t is not your job to make my choices.